Littelfuse accuses Mersen of infringing its U.S. Patent No. 9,564,281 by sale of the Mersen HP15G family of photovoltaic fuses. In a somewhat bare-bones complaint, Littelfuse asserts that Mersen had actual knowledge of the ‘281 patent, entitling Littelfuse to a finding of willful infringement, treble damages and attorney’s fees, although the complaint does not specify exactly how Mersen came by its alleged knowledge of the patent. The case has been assigned to Judge Talwani.

New England Anime Society (NEAS”) sued Fantastic Gatherings and Interactive Meet and Greet for trademark infringement, false designation of origin, unfair competition, and cybersquatting. NEAS holds a three day convention every spring, known as “Anime Boston,” to celebrate Japanese pop-culture, including anime, manga, J-Pop, J-Rock, and live-action Japanese media. NEAS registered the ANIME BOSTON mark and has used it in connection with this convention for sixteen years. The event garners publicity through NEAS’ promotional efforts, news coverage, and social media, and is attended by more than twenty-five thousand people from all over the world. NEAS alleges that the defendants have developed and are promoting an event to take place in Hanover, Massachusetts. The formal name of the event is Boston SouhCoast Comic Con & Collectibles Extravaganza, but is allegedly being promoted by the defendants as “Boston AnimeFest” and “Boston Anime Fest,” and the website relating to the event is at www.bostonanimefest.com, which redirects to the defendants’ webpage at www.necomicon.net. Fantastic Gatherings, the company actually sponsoring the event, is alleged to have direct knowledge of NEAS’ marks, because two of its officers and directors previously worked as volunteers for NEAS. In response to a cease and desist letter, the defendants asserted that the terms ‘Boston” and “Anime” “fall into fair use as generic when used together in either order.” NEAS asserts, however, that the PTO registered the mark after determining that the mark had acquired distinctiveness through the years of NEAS’ use. NEAS asserts that the defendants deliberately chose a confusingly similar mark to ride on the coattails of NEAS and its anime festival.

Maquet sued Abiomed in the District of Massachusetts, alleging that Abiomed’s Impella pumps infringe Maquet’s recently-issued U.S. Patent No. 9,789,238 covering intravascular blood pumps. The two parties have been engaged in a hotly-contested battle in this area, with Abiomed having previously brought a declaratory judgment action in this District, seeking judgment of non-infringement of several related patents. Maquet had added a counterclaim relating to the ‘238 patent in that matter, but withdrew the claim in the face of Abiomed’s motion to strike because Maquet had not first sought leave to include the new patent. Abiomed had also filed requests for inter partes review on a number of the family members, the bulk of which were not instituted. Direct, contributory, and induced infringement are alleged in the ‘238 case, and provisional damages and injunctive relief are sought.

Judge Gorton construed nine terms of asserted U.S. Patent 7,825,793. The patent allows for remote monitoring and control of household or building parameters, including security systems, fire alarm systems, heat, air conditioning, and other utilities, by relaying information, via ZigBee signals, from a monitoring device at the location to a remote end user through a node (or multiple nodes) mounted on a utility pole. Many of CIMCON’s proposed constructions were rejected as reading out embodiments from the specification, most notably rejecting a proposed “mechanism that activates process control equipment” construction for the term “actuator” because the claim requires the actuator to “interact with” the parameter at issue in the location, and embodiments in the specification made it clear that “interact with” includes monitoring as well as controlling. Judge Gorton refused to construe several terms, finding that the presumption that a term has its plain and ordinary meaning to one of skill in the art had not been overcome. Finally, he refused to determine whether one term was indefinite, both because the argument relied on a construction of a related term that was not adopted and because indefiniteness is inappropriate at the Markman stage and is better left for summary judgment.

Judge Saylor issued a claim construction order in this case, which involves three patents relating to abuse-deterrent and low-toxicity versions of oxycodone. The claims relating to deterrence of abuse required the inclusion of an irritant in an amount sufficient to impart an irritating sensation. Collegium first sought to require the irritant be something deliberately added to the composition for the purpose of causing irritation – in other words, that would not cover ingredients added for other purposes that happened to also be irritants. This construction was denied as improperly importing an element of intent into the claims, although Judge Saylor did note that, during prosecution, Purdue had disclaimed instances where the other recited ingredients (drug, release carrier, excipient) could also serve as the irritant, thus reducing the broadness of the scope from that sought by Purdue. Judge Saylor refused to find the term “effective amount” indefinite, finding that the term has a customary usage to a person of ordinary skill in the art and that examples were provided in the specification, providing an objective baseline through which the term would be understood. Finally, with respect to reduced toxicity, Judge Saylor rejected Collegium’s arguments that “removing” a particular impurity should be limited to removing only that particular impurity and removing it completely, as being inconsistent with the usage of the term in the specification.

Core Brands sued Jane Cheung and George Chan, Athome-products.com, AZ Electronics, AV Custom Pro for trademark infringement. Core Brands makes and sells audio, power management and control products under the brand names ATON, BlueBOLT, ELAN, Furman, Korus, Niles, Panamax, Proficient, SpeakerCraft, Sunfire, and Xantech through a network of authorized dealers. Among other things, Core Brands’ agreement with its authorized dealers prevents the dealers from selling Core Brands products to other retailers or resellers. The defendants are alleged to sell Core Brands products without authorization, of removing serial numbers from the Core Brands products, which voids the warranty, and of using Core Brands trademarks in advertising the products. Core Brands brings counts of trademark infringement, counterfeiting, false designation of origin, unfair competition, and tortious interference with contractual relations. The complaint does not made clear why the suit was brought in Massachusetts, as all parties are alleged to be California residents.

Judge Zobel denied Perrigo’s renewed motion for judgment as a matter of law that B&W lacked standing to sue and that U.S. Patent 5,229,137 was anticipated or obvious, but granted Perrigo’s motion that it did not infringe the patent. The ‘137 Patent is directed to methods of treatment of episodic heartburn that involve co-administration of an antacid and a histamine H2-receptor antagonist in an amount effective to provide “immediate and sustained relief,” which was construed to mean relief that starts within 5-10 minutes and lasts for at least 4-6 hours. In December of 2016, a jury had found the patent valid and infringed, and awarded B&W $10,210,071 in damages.

Perrigo’s standing objection was based on a requirement that B&W notify its then-licensee, Johnson & Johnson Merck Consumer Pharmaceuticals, of the suspected infringement and allow Johnson & Johnson 120 days to file suit before B&W could sue. Judge Zobel agreed that there was a notice requirement that was not met, but nevertheless found that B&W had standing because the license did not grant all substantial rights to JJMCP, leaving B&W as the owner of the patent. On the validity issue, Judge Zobel agreed with Perrigo that B&W failed to corroborate its claim to a priority date that predated the filing of the application because B&W presented only unwitnessed lab notebooks as corroboration. Despite this, she found that the prior art references at issue failed to disclose or teach the “immediate and sustained relief” limitation. Judge Zobel did, however, rule in Perrigo’s favor on infringement. B&W did not present direct evidence on how Perrigo’s drug performed, instead relying on Perrigo’s bioequivalence data from its ANDA as proof that it performed the same as JJMCP’s branded Pepcid Complete product. Accordingly, to prove infringement, B&W had to prove that Pepcid Complete met all of the claim limitations. Judge Zobel found that the data presented on Pepcid Complete failed to prove that it met the “immediate and sustained relief” limitation because the clinical studies from JJMCP’s FDA submission did not begin with a low enough pH to qualify as “episodic heartburn,” and that the pH data was not correlated with “relief from pain, discomfort, and/or symptoms associated with episodic heartburn” as the claim required. In light of this, the damages award was overturned.

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About this blog…

The D. Mass. IP Litigation Blog will monitor the U.S. District Court for Massachusetts, with a special interest on patent, trademark, trade secret, antitrust, and copyright litigation. Since the Supreme Court’s TC Heartland decision, we have seen an increase in intellectual property filings in D. Mass. due to the high concentration of technology and life sciences companies in the Commonwealth and because of the Court’s ability to handle complex, accelerated matters. We plan on providing our readers with timely insights on recent cases.